U.S. v. Washington, 57 M.J. 394

Core Criminal Law Subjects: Crimes: Article 90 - Assaulting or Willfully Disobeying Superior Commissioned Officer Pre-2019 offenses

1. a servicemember charged with a disobedience offense may challenge the lawfulness of the order on a variety of grounds, e.g., that the order directed the commission of a crime; that the issuing officer lacked authority; that the order did not relate to a military duty; that it interfered with private rights or personal affairs without a valid military purpose; that it was solely designed to achieve a private purpose; that it conflicted with a person’s statutory or constitutional rights

Core Criminal Law Subjects: Defenses: Duress

1. duress may be a defense to crime if the defendant was compelled or coerced to commit the crime by some human agency, under a threat of serious imminent harm to the defendant or others; for the defense of duress to apply, the crime committed must have been of lesser magnitude than the harm threatened; the duress must have consisted of threatening conduct which produced in the defendant a reasonable fear of immediate (or imminent) death or serious bodily harm; and an obviously safe avenue of escape before committing the prohibited act nullifies the defense
2. a narrow reading of R.C.M. 916(h) that would permit a member of the armed forces to disobey a lawful order if the servicemember had a reasonable apprehension that he or she, or another innocent person, would immediately be killed or suffer serious bodily injury if he or she complied with the order is at odds with one of the core values of military service -- the willingness of the individual to sacrifice his or her life or well-being for the sake of the nation; when a commander gives an order that is reasonably necessary to accomplish the mission -- including an order involving protective measures, such as defensive positioning, wearing protective armor, or taking a vaccine to counter a biological weapon -- the servicemember is obligated to obey or face punishment
3. the President’s guidance on the duress defense in R.C.M. 916(h) must be read in conjunction with the guidance on disobedience of lawful orders and the essential purposes of military law; the duress defense in R.C.M. 916(h) should be viewed in a manner consistent with the requirement in prevailing civilian law that the threat emanate from the unlawful act of another person
4. there may indeed be unusual situations in which an assigned military duty is so mundane, and the threat of death or grievous bodily harm so clearly defined and immediate, that consideration might be given to a duress or necessity defense; that is not the case where the anthrax vaccination program was designed and implemented as a defensive measure in the face of a significant military threat

Core Criminal Law Subjects: Defenses: Necessity

1. necessity was traditionally seen as a choice of evils defense in which the pressure of circumstances was not brought by human agency, but by the situation itself; and the defendant’s belief that his actions were necessary must have been reasonable, and there must have been no alternative that would have caused lesser harm
2. if the defense of necessity applies in the military justice system -- a question which the Court of Appeals for the Armed Forces did not resolve at this time – it must be interpreted in conjunction with the guidance on disobedience of lawful orders and the essential purposes of military law and would call for an application of the prevailing civilian doctrine regarding the requirement for the necessity to arise from a natural force, as opposed to a human action
3. there may indeed be unusual situations in which an assigned military duty is so mundane, and the threat of death or grievous bodily harm so clearly defined and immediate, that consideration might be given to a duress or necessity defense; that is not the case where the anthrax vaccination program was designed and implemented as a defensive measure in the face of a significant military threat

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. the presumption of innocence is set forth in the statutory requirement that, prior to findings, the members of a court-martial must be instructed that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt; although not literally employing a presumption, the instruction reminds the members of the critical fact that the accused, as a matter of law, is innocent unless the members are satisfied the prosecution has proved each required element of the offense beyond a reasonable doubt; practically, the presumption of innocence serves to underscore the instruction that the members may not presume that the defendant is guilty simply because charges have been referred to trial

Trial Stages: Appeals: Courts of Criminal Appeals › Factual sufficiency

1. Article 66(c) requires the Courts of Criminal Appeals to conduct a de novo review of legal and factual sufficiency of the case; the court may affirm a conviction only if it concludes, as a matter of factual sufficiency, that the evidence proves appellant’s guilt beyond a reasonable doubt
2. the Court of Criminal Appeals is required to conduct a de novo review of the entire record of a trial, which includes the evidence presented by the parties and the findings of guilt; such a review gives no deference to the decision of the trial court on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take into account the fact that the trial court saw and heard the witnesses
3. in the performance of its Article 66(c), UCMJ, functions, the Court of Criminal Appeals applies neither a presumption of innocence nor a presumption of guilt
4. during review under Article 66(c), UCMJ, an appellant does not bear the burden of raising doubts about the trial-level finding of guilty

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. in reviewing a case for sentence appropriateness, the Courts of Criminal Appeals are not required to compare appellant’s case to other specific cases unless the appellant demonstrates that his or her case is closely related to the case or cases offered for comparison; mere similarity of offenses is not sufficient
2. in review of sentence appropriateness decisions by the Courts of Criminal Appeals, Court of Appeals for the Armed Forces will determine whether the lower court abused its discretion or caused a miscarriage of justice in exercising its highly discretionary sentence review function

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in review of sentence appropriateness decisions by the Courts of Criminal Appeals, Court of Appeals for the Armed Forces will determine whether the lower court abused its discretion or caused a miscarriage of justice in exercising its highly discretionary sentence review function